What a mess!

Recently my intern Dave Hansen (another lawyer) and I have been looking at the new author self-archiving policies promulgated by the American Chemical Society and Elsevier.  It would be more accurate to say that these policies are anti-archiving; in spite of persistent rhetoric about how committed these publishers are to access to scholarship, the clear intent is to restrict and interfere with decisions faculty authors might make about how best to serve their own interests as scholars.

A comical element was introduced into our consideration early on, when we realized that the two different policies imposed directly opposite requirements for self-archiving.  The ACS only allows an author to self-archive their final manuscript if doing so is mandated by her institution, while Elsevier only allows it if it is not.  So on each campus the policies must be evaluated and one publisher or the other declared off limits.

In general these publishers’ statements about author rights are confusing and self-contradictory.  It seems clear that the intent of these statements, policies and contracts is not to clarify the authors’ obligations so much as it is to confuse and intimidate them.  At one point we asked ourselves why we were spending so much time poring over these badly drafted documents, and we realized that we were doing it because we are concerned not to let our faculty authors put themselves into difficult positions.  What is clear is that these publishers have no such concern; they are trying to make authors pawns in their effort to dictate campus policies.

We have to start our evaluation of the position that Duke authors would be in, vis-à-vis these publishers, by asking ourselves what exactly the Duke Open Access policy is.  From its inception we have maintained that it is not a mandate.  Although the policy grants Duke a license to archive the works written by its faculty, there is no requirement or assertion that it will be universally exercised.  The license is fully waivable and it was adopted with the commitment that its implementation would not involve Duke authors in conflicting obligations.  What the policy most clearly represents is a strong statement that Duke authors want to make their own works as accessible as possible to the largest number of people.

So if this is what we think our policy is, how does it interact with the crazy quilt of rules imposed by these two publishers?  Regarding the American Chemical Society, our conclusion was that Duke’s policy is simply incompatible with publication in an ACS journal.  ACS only allows an author to self-archive if there is an institutional or funder mandate that they do so, and Duke does not mandate such behavior.  ACS authors are treated here with little consideration; their right to make individual decision about their own best interests is simply not respected.  So we will communicate to our authors who write for ACS journals that they may not exercise the policy decision that they made 18 months ago because their scholarly society has told them not to.  We will ask them to make their unhappiness with this interference with their freedom to determine academic policy known to the ACS.

Elsevier presents a more difficult case.  There are multiple policy statements out there, and they are not particularly consistent.  It is also not clear which statements will actually end up incorporated in author contracts.  What is clear is that Elsevier wants to dictate what policies our faculty can and cannot adopt for itself, which certainly raises the issue of how willing authors will be to surrender the idea of academic freedom.

But our bottom line is that these statements are ineffective in changing our approach at Duke.  In a statement sent to the lib-license email list, Alicia Wise of Elsevier tried to explain the new policy by emphasizing that authors would still be able to voluntarily post their final author manuscripts. Only a “mandate” triggers the restriction on author self-posting, according to Ms. Wise.  Although there is language in some of the Elsevier documents that suggests otherwise, we are inclined to take Ms. Wise at her word.  Our policy is not a mandate, and author participation is entirely voluntary, especially since a final author’s manuscripts can only be obtain from authors on an individual “opt-in” basis.  So we do not see a conflict here with the policy our faculty has put in place.

If Elsevier disagrees with our interpretation and thinks that Duke’s policy triggers their denial of authors’ rights to our faculty, they ask us to discuss the matter with them.  This we would be happy to do, but we will do it as part of our negotiations to subscribe to their journal packages.  In her email message Ms. Wise states, somewhat out of the blue, that “author rights agreements and subscription agreements should be kept separate.”  On the contrary, we believe that subscription negotiations are the perfect time for a campus or consortium to take steps to protect its faculty and defend their right to make policy decisions for themselves.  If Elsevier wants to interfere with that right, we will address that desire at the point when we are considering investing some of the Universities’ money with them, if only to get their attention.

6 thoughts on “What a mess!”


    I am going to make this as brief and as simple as possible, in the fervent hope that it will be read, understood and acted upon by authors and their institutions:

    A Green publisher is a publisher that endorses immediate self-archiving of their authors’ accepted final drafts (but not necessarily the publisher’s version of record) free for all on the web, immediately upon acceptance for publication.

    That’s all it takes for a publisher to be Green (and to be on the Side of the Angels).

    In the new language that some Green publishers have jointly adopted for their copyright transfer agreements recently, some new conditions have been added, based on three distinctions. Not all Green publishers have added all three conditions (Elsevier, for example, has only added two of them, IOP all three), but it does not matter, because all three distinctions are incoherent: They have no legal, logical, technical nor practical substance whatsoever. The only thing that a sensible person can and should do with them is to ignore them completely.

    Here they are. (The actual wording in the agreement will vary, but I am giving just the relevant gist.)

    (1) You may self-archive your final draft on the web, immediately upon acceptance for publication, free for all — but you may only do it on your personal institutional website, not in your institutional repository.

    This distinction is completely empty. Your institutional website and your institutional repository are just institutional disk sectors with different (arbitrary) names.

    (2) You may self-archive your final draft on the web, immediately upon acceptance for publication, free for all — but you may not do it where there is “systematic distribution.”

    All websites are systematically harvested by google and other search engines, and that’s how most users search and access them.

    (I think what the drafters of this absurd condition may have had in mind is that you may not deposit your paper on a website that tries to systematically reconstruct the contents of the entire journal. They are perfectly right about that. But an institutional repository certainly does not do that; it simply displays its own authors’ papers, which are an arbitrary fraction of any particular journal. If there is anyone that publishers can — and should — go after, it is 3rd party harvesters that reconstruct the contents of the entire journal.)

    (3) You may self-archive your final draft on the web, immediately upon acceptance for publication, free for all — but not if you are mandated to do it (i.e., you may if you may but you may not if you must).

    Authors are advised to advise their publishers, if ever asked, hand on heart, that everything they do, they do out of their own free will, and not out of coercion (and that includes the mandate to publish or perish).

    If anyone is minded to spend any more time on this nonsense than the time it took to read this message, then they deserve everything that’s coming (and not coming) to them.

    Elsevier authors: Just keep self-archiving in your IRs, exactly as before, and ignore these three silly new clauses, secure in the knowledge that they contain nothing of substance.

    <b<American Chemical Society (ACS) authors: ACS policy is non-Green. Self-archive your refereed final draft in your institutional repository immediately upon acceptance and, if you wish, set access as “Closed Access” rather than OA during the embargo period. Encourage your institution to implement the automated “eprint request” Button on your repository to fulfill user needs during any embargo. If your institution (or funder) has mandated (i.e. required) Green OA, make your ACS deposit OA immediately; if not, encourage them to adopt a mandate (a Green OA self-archiving mandate, with no opt-out).

    Duke University OA policy-makers: You are unwittingly buying into the same word-game-playing as the publishers: Mandate immediate deposit, without opt-out, as Harvard A&S does. (Reserve the opt-out for the rights-retention clause.) That way all your authors — Elsevier and ACS — can provide immediate OA.

    Stevan Harnad
    Enabling Open Scholarship


  2. Well said! Here’s hoping that more and more academic institutions take bold steps like this to advocate for authors’ rights.

  3. I too recently had a similar experience in regards to an academic publishing in the journal “Blood”.

    When I examined the details for authors self-archiving articles, the first section seemed to stated that an author can “post a copy of the article on the author’s personal website, departmental website, and/or the university intranet” “after their article has been published in Blood, either in print or online as a First Edition Paper”

    But then the second section states that the author can only post something from a First Edition Paper “if the article has not yet been published in its final form in the print version of Blood”

    To me this sounds either like a contradiction or a long way of saying that you can only post a pre-print of an article from a First Edition Paper and the author must take down the pre print once the final version has been published.

    I sent an email to Blood asking for clarification on this and even broke down my question as:

    1) can an author can post a copy of an article from a First Edition Paper in their institutional repository
    for a) internal access only?
    b) public access ?

    2) does the copy need to be a pre-print, post-print or publisher version?

    I sent that email over a month ago, and a follow up a fortnight ago, and I am STILL waiting on an answer!

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